Estate Planning FAQ

Estate Planning FAQ

Get Your Estate Planning Questions Answered!

What is a Will?

A Will is a written document explaining how you want your possessions and assets to be distributed after you die. A Will is put into effect at your death. You can change your Will at any time, as long as you are legally competent to do so. Your Will is filed with the Court after your death and becomes a public record.

If you have assets and want certain people or charities to inherit those assets, you should have a Will. Leaving assets and decisions undetermined is a gross error in judgment and always causes family confusion and turmoil.

Since a Will has no effect until you die, you cannot personally direct the distribution of your estate. In order to ensure your estate is handled in accordance with your wishes after you die, you should establish a Will, and ensure its validity with proper execution. A Will can settle disputes amongst family members, distribute your finances, and ensure proper care for your property, and minor children.

There are many reasons a Will could be invalid. One of the common ways a Will is invalid is because it was not properly signed and witnessed. Utah State law is clear about the requirements for a Will: it must be signed by the Testator (the person signing the Will) in the presence of two witnesses, and the witnesses must also sign the Will on the same occasion. The witnesses must also sign an affidavit about their signing the Will, which they can do at the Will signing or some time later. Without the witnesses’ signatures and affidavits, a Will cannot be admitted to probate. It’s best to complete the Will by having the witnesses’ signatures notarized.

You cannot make any marks or changes to your Will once it has been signed and witnessed. If you do, you invalidate your Will because your changes are not properly witnessed according to Utah law. If you want to change the terms of your Will, you must execute a new document.

If you have young children or if one of your heirs is disabled or unable to manage money well, you should speak with an estate planning attorney from Christensen Young about creating a Testamentary Trust.

A Power of Attorney is a legal document that gives another person the right to act on your behalf under certain circumstances. A Power of Attorney can be for a limited purpose such as signing documents for you when you are out of town, or for general purposes (such as managing your financial affairs if you become unable to do so). Some Powers of Attorney deal specifically with making medical decisions.

If a Power of Attorney is “Durable,” this means that the person to whom you give your power can make decisions and act on your behalf even if you become disabled. One type of Durable Power of Attorney does not become effective until the Principal (the person giving the power) becomes incapable of managing his or her affairs. Having a Durable Power of Attorney can sometimes avoid the need to have a Guardian appointed.

A Health Care Directive, sometimes called a “Living Will,” or a “Directive to Physicians,” is a written statement of your wishes in the event you are in a “persistent, vegetative state” (such as a coma). A Health Care Directive addresses issues such as life support, artificial nutrition, and artificial hydration.

A Disposition of Remains form is a written expression of your wishes about funeral and burial. Having a Disposition of Remains form is especially important if you wish to be cremated. If you want to be cremated, and you have not signed a document to that effect, the funeral home will most likely require the consent of your relatives. If one relative does not consent, the funeral home may choose not to cremate your remains. Having a Disposition of Remains form can also be very helpful to your survivors. The death of a family member or close friend is always traumatic; having a clear expression of your wishes is one less worrisome issue for your family to handle.

If you own property in “Joint Tenancy with Right of Survivorship,” this means you own the property equally with another person and each person is entitled to the asset. When you die, the other person inherits that asset immediately, without a probate. A common example of Joint Tenancy with Right of Survivorship is a bank account in the names of both a parent and an adult child. Both people are owners of the account, and either one of them can withdraw money from the account at any time, even if one has not deposited money in the account. When one person dies, the other person becomes the sole owner.

When preparing your estate plan, you should check to see if any of your assets are held in Joint Tenancy with Right of Survivorship, as these assets will pass to the “Joint Tenant” and will not pass according to your Will.

“Pay on Death” accounts are more restrictive than Joint Tenancy with Right of Survivorship accounts. If you have a bank or investment account that is Pay on Death, you are the sole owner of the account during your life. When you die, your designated beneficiary inherits the account. You designate the beneficiary when you open the account. The beneficiary takes the money in the Pay on Death account and this money is not controlled by your Will.

“Gifting,” which is giving property and money away while you are alive, is a technique that can reduce estate taxes. If you gift more than $13,000.00 to a single person in a calendar year, you must file a gift tax return with the IRS. Before you give property or money to someone, consult with a qualified estate planning attorney and a Certified Public Accountant.

A Community Property Agreement is an agreement between a husband and wife that can affect probate or even eliminate the need for probate. Your estate planning attorney at Christensen Young can explain how your particular estate can benefit from a Community Property Agreement.

The originals of your estate planning documents, such as your Will, Durable Powers of Attorney, Health Care Directive, and Disposition of Remains Instructions, should be kept in a fireproof, locked container. You may store them in your safe deposit box or a fireproof safe. If you do, it’s a good idea to give access rights to one other person so that when you die, that person can retrieve your Will from the box or safe.

The cost for estate planning documents varies depending on the complexity of your estate and your estate planning goals. After you meet with a Christensen Young attorney, the attorney can give you an estimate of cost. These charges are usually minimal when you understand the Estate Planning is always needed for everyone that has assets.

Is it really worth the expense to have an attorney prepare my estate planning documents?

Yes. Not only does having a complete professionally prepared estate plan give you peace of mind, it will help reduce the costs of administering your estate and will make the probate process easier for your loved ones.

Why can’t I just use the forms I found on the internet or go to the office supply store and get a form?

The forms you find online or in office supply stores are too general for most people to accomplish their estate planning goals. A qualified estate planning attorney can write documents specifically for your particular situation.